On December 13, 2007, former Sen. George Mitchell released
the findings of his investigation into "the illegal
use of steroids and other performance enhancing substances
by players in Major League Baseball." The main
conclusion of the 409-page report: "For more than
a decade there has been widespread illegal use of anabolic
steroids" and performance-enhancing drugs by major
league players "in violation of federal law and
baseball policy."

This is news?

Since 1988, when allegations were first reported in
the media of steroid use among players, Major League
Baseball has known that it might have had a problem
with steroid abuse. In 1994, when several players were
on a pace to break Roger Maris's single-season home
run record, the owners had further notice that something
other than juiced balls might be responsible for the
slugfest taking place every day at the ballpark. And
when home run production exploded in 1998, led by Mark
McGwire's record-breaking seventy home runs that year
(and his admitted use of the dietary supplement, androstenedione),
MLB had more than enough circumstantial evidence to
warrant an investigation into whether players were using
illegal drugs or other questionable substances to improve
their performances on the field. Yet baseball did nothing.

In mid-2002, former MVPs Jose Canseco and Ken Caminiti
both claimed that steroid use was widespread among major
league players, yet MLB conducted no investigation and
ultimately negotiated a weak drug-testing program with
the players' union when a new basic agreement was reached
later that year. Only after Canseco published
his controversial 2005 autobiography, Juiced,
where he again alleged that numerous ballplayers were
steroid users (including McGwire)and highly publicized
congressional hearings before the U.S. House of Representatives
Committee on Government Reformdid MLB finally
adopt a drug-testing policy that had significant penalties
for illegal steroid use. But still no acknowledgement
that baseball had a serious enough problem to warrant
further inquiry.

Then, in 2006, came the publication of Game of Shadows
by San Francisco Chronicle reporters Lance Williams
and Mark Fainaru-Wada, an investigative exposé
of the Bay Area Laboratory Co-Operative (BALCO) scandal
that implicated major league stars Barry Bonds, Jason
Giambi, and Gary Sheffield as users of steroids and
performance-enhancing drugs. The book caught the attention
of several influential members of Congress, so Commissioner
Bud Selig, recognizing that MLB could stall the obvious
for only so long, did the prudent thing: he appointed
a former Senate majority leader to investigate.

Of course, George Mitchell wasn't exactly a random selection.
He currently serves as a director (an officer position)
for the Boston Red Sox, formerly served on the board
of directors of the Florida Marlins, and spent eleven
years as a director (and later chairman of the board)
of the Walt Disney Company, parent company of ESPN and,
until 2003, owner of the Anaheim Angels franchise. He
was also a hand-picked member of baseball's "Blue
Ribbon panel on baseball economics."

Mitchell dutifully disclosed these potential conflicts
of interest in the appendix to his report, and stated
that "none of these matters affected my ability
to conduct an investigation that was thorough, impartial,
and fair." This may be so, but it should come as
no surprise that the strongest words of criticism Mitchell
could muster for the inaction of Selig and the owners
during the past decade is that "the response by
baseball was slow to develop and was initially ineffective."
No kidding.

In fairness to Mitchell and his staff of investigators,
the report includes a thorough discussion regarding
steroid incidents over the years, as well as a compilation
of information on eighty-nine major league players alleged
by Kirk Radomski, a former New York Mets clubhouse employee,
and Brian McNamee, a personal trainer whose clients
included Roger Clemens and Andy Pettitte, to have used
steroids and performance-enhancing drugs. In addition,
the report offers three common sense recommendations:
(1) MLB should create an internal "department of
investigations" to deal with allegations of illegal
use or possession of performance-enhancing substances,
and should strengthen its methods for barring drugs
from the clubhouse; (2) MLB should improve its efforts
to educate players and others regarding the grim health
dangers that result from this drug use; and (3) the
club owners and the Players Association should adopt
a new drug testing program that employs an independent
testing administrator utilizing a state-of-the-art testing
protocol that goes above and beyond the current urine
testing procedure.

However, for anybody who isn't impressed by a thick,
lawyerly crafted dossier that provides a lot of detail
but essentially repeats information disclosed elsewhere,
the Mitchell Report is nothing more than a slick public
relations job intended to distract the public and provide
cover for Congress that MLB is finally "doing something."
Mitchell may consider his report to be an "independent"
investigation, but he does little to call out the blatant
laxity in Selig's leadership or the failure of baseball's
former director of security to do anything more than
cursory follow-ups of information about steroid use
that came to his attention. In addition, where there
is a conflict between accounts provided by different
sources, there is no indication that Mitchell or his
staff attempted to probe MLB officials to ascertain
whether they may have been lying or covering up details.
Instead, Mitchell lets stand assertions by the Commissioner's
office that its hands were repeatedly tied by the collective
bargaining agreement, thus reinforcing the notion that
MLB would have done something about steroids but for
the intransigence of the Players Association.

According to information available at mlb.com, "the
cost of the [Mitchell] investigation has been reported
to be as much as $20 million." For probably two
to three percent of that amount, MLB could have compiled
a general outline of much of the information contained
in the report (and with the savings realized, probably
funded thousands of youth baseball programs). Of course,
such a document wouldn't have had the imprimatur of
a respected figure like George Mitchell, but there's
little that he has recommended that couldn't have been
arrived at by Major League Baseball on its own had there
been one scintilla of leadership at the top. Instead,
Selig and his cronies looked the other way, and the
only condemnation that Mitchell can offer of their actions
is that "everyone involved in baseball over the
past two decadesCommissioners, club officials,
the Players Association, and playersshares to
some extent the responsibility for the steroids era."
Sure, everybody knew what was going on, but who other
than Bud Selig could have forced baseball to deal with
the issue?

What is especially galling about Mitchell's report is
that when it comes to recommending consequences for
illegal behavior and potential violations of baseball's
own drug policy, he urges "the Commissioner to
forego imposing discipline on players for past violations
of baseball's rules on performance enhancing substances,
including the players named in this report, except in
those cases where he determines that the conduct is
so serious that discipline is necessary to maintain
the integrity of the game." While I would never
suggest that ballplayers should be disciplined based
merely on allegations, the idea that players should
be given amnesty simply because "being chained
to the past is not helpful" is ludicrous. Two of
baseball's most accomplished players in historyBarry
Bonds, a seven-time MVP and all-time home run record
holder, and Roger Clemens, a seven-time Cy Young Award
winner and one of the game's greatest pitchersare
implicated in the steroids scandal and Mitchell just
wants to let bygones be bygones?

Mitchell even goes so far as to make a gratuitous comparison
between the crisis in baseball over steroids and the
longstanding conflict in Northern Ireland that he helped
mediate to a peaceful resolution: "From my experience
in Northern Ireland I learned that letting go of the
past and looking to the future is a very hard but necessary
step toward dealing with an ongoing problem. This is
what baseball now needs."

Where was Bud Selig in all of this?
I want to see Clemens' and Bonds' records removed from
the game. Set an example.  post by Taylor Ritchie to the New York
Times "Bats" blog the day the Mitchell
Report was released, one of 255 comments in a ten-hour
period.

There is an oft-cited phrase that fans like to quote
when baseball is in crisisthat the commissioner
should act in "the best interests of baseball."
As the Mitchell Report demonstrates all too clearly,
the best interests of baseball no longer concern the
integrity of the game, at least not the way most individuals
would view that concept. Instead, the "best interests
of baseball" have come to mean only the financial
viability of the sport: Take no action unless economic
repercussions are unavoidable. So baseball dances its
way around the steroids mess, Congress sleepwalks through
the issue, and, as one anonymous blogger notes, the
"culture of cheating will continue and thrive,
as sure as there will be a crowd waiting to buy tickets
for next season." Play ball!

Where else but in Major League Baseball can someone
engage in activity in violation of federal and state
law, violate their organization's express policies,
violate their employment contract, lie about it to the
public, refuse to cooperate with official investigations,
and, when caught, "not be punished for past misdeeds."
I bet Michael Vick sure wishes he had taken up baseball.
. . . post by Mark Friedfeld, New York Times
"Bats" blog

EFQ

TOM GOLDSTEIN has been publisher of EFQ since
1998 and its editor since the Fall 2000 issue. He is a graduate of
the William Mitchell College of Law.